The BIA May Use Post-Departure Bar to Deny Motions Requesting Sua Sponte Reopening

The Court of Appeals for the Third Circuit (the “Third Circuit”) recently held the Board of Immigration Appeals (the “BIA”) “did not err when it concluded that it lacked jurisdiction to consider [an alien's] motion to reopen sua sponte”, Desai v. Attorney General of the United States, No. 11-3229 (August 21, 2012), after the alien's departure from the United States. Id. The respondent was admitted as a lawful permanent resident in 1980. Id. He was subsequently arrested on numerous occasions and convicted of committing at least twelve crimes. Id. He was placed in removal proceedings in 2008 based upon convictions for possession of a controlled dangerous substance and theft in the third degree. Id. The respondent conceded removability as charged, but sought relief from removal under the Convention Against Torture (the “CAT”). Id. The Immigration Judge (the “IJ”) concluded the respondent failed to establish eligibility for CAT and the respondent was ordered removed. This determination was subsequently affirmed by the BIA and Third Circuit. Id.

A year after the respondent was removed from the United States his conviction for possession of a controlled substance was vacated and set for a new trial. Id. The respondent subsequently filed a motion to reopen his removal proceedings with the BIA. Id. This motion was filed well outside the ninety day window for filing a timely motion to reopen. See 8 U.S.C. §1229a(c)(7)(C), 8 C.F.R. §1003.2(c)(2), and 8 C.F.R. §1003.23(b)(1). The respondent's motion to reopen requested the BIA exercise its sua sponte authority to reopen removed proceedings. Desai, supra. Pursuant to 8 C.F.R. §1003.2(a) “the Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. §1003.2(a). The BIA denied the respondent's motion to reopen concluding it lacked jurisdiction due to the application of the post-departure bar found in the Federal Regulations. The post-departure bar provides

a motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

8 C.F.R. §1003.2(d).

The respondent filed a timely petition for review with the Third Circuit. The respondent relied on the Third Circuit's decision in Prestol Espinal v. Attorney General, 653 F.3d 213 (3d Cir. 2011). In Prestol Espinal, the Third Circuit had concluded that the post-departure bar was “invalid to the extent it conflicted with a statute that grants aliens the right to file one motion to reopen under certain conditions.” Prestol Espinal, 653 F.3d at 224. The effect of the post-departure bar was to “nullify a statutory right.” Id.

However, the respondent's reliance on the Third Circuit's decision in Prestol Espinal was misplaced. While the Third Circuit's decision “was stated broadly and seemed to suggest that the post-departure bar was invalid in its entirety, [the Court's] explanation made clear that [it] had only statutory motions to reopen or reconsider in mind.” Desai, supra. The Third Circuit had determined the post-departure bar found in the Federal Regulations conflicted with Congress' clear intent in regards to motions to reopen for the following reasons:

first, the plain text of the statute provides each “alien” with the right to file one motion to reopen and one motion to reconsider. Second, the importance and clarity of this right has been emphasized by the Supreme Court in [Dada v. Mukasey, 554 U.S. 1, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)]. Third, Congress specifically considered and incorporated limitations on this right and chose not to include the post-departure bar, despite its prior existence in regulation. Fourth, the post-departure bar would eviscerate the right to reopen/reconsider by allowing the government to forcibly remove the alien prior to the expiration of the time allowance. Fifth, Congress included geographic limitations on the availability of the domestic violence exception, but included no such limitation generally. Sixth, Congress specifically withdrew the statutory post-departure bar to judicial review in conformity with IIRIRA's purpose of speeding departure, but improving accuracy.

Id.

In Prestol Espinal the Third Circuit did “not discuss, or even acknowledge motions to reopen that are filed out of time or otherwise disqualified under the statutory scheme.” Id. These motions may still be considered by the BIA in the exercise of the agency's sua sponte authority. The authority is not set forth in the Immigration and Nationality Act (the “INA”), but rather the Federal Regulations. As such, “the concern driving [the Third Circuit's] holding in Prestol Espinal — that the post-departure bar undermines an alien's statutory right to file one motion to reopen — does not extend to [motions to reopen sua sponte, where neither that statutory right nor congressional intent is implicated.” Id.

The Desai decision further stresses the need to file a timely motion to reopen to ensure the decision on the merits of the case rather than a procedural technicality. This decision also underscored the importance of fighting deportation/removal to the extent possible in the United States. This can include seeking post-conviction relief for criminal convictions. If you or your loved one is in removal/ deportation proceedings, it is imperative to retain an experienced attorney.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Secure Communities - Well Meaning, But Overreaching

I typically post blog entries regarding decisions from the Board of Immigration Appeals (the “BIA”) and Court of Appeals. However, I recently read an article in Newsday by Victor Manuel Ramos entitled “LI leads state in undocumented-immigrant deportations” and wanted to take the opportunity to discuss the immigration enforcement program known as Secure Communities. This article discussed how the impact of Immigration and Customs Enforcement's (the “ICE”) Secure Communities program had in the State of New York. You can read the article by following this link: “LI leads state in undocumented-immigrant deportations”

Secure Communities is a federal information sharing program that “checks fingerprints and personal data of all people facing criminal charges against a federal database that tracks immigrants sought by the federal government.” Ramos, Victor Manuel, “LI leads state in undocumented-immigrant deportations” (September 2, 2012). According to the 2008 congressional mandate, the purpose of secure Communities “is to expel 'criminal aliens', those who pose a threat to public safety and repeat immigration violators'.”

While very few would argue with the goal of Secure Communities, the problem is how the program has been implemented. Secure Communities has been criticized for being overbroad, “because it also snares those charged with minor criminal offenses.” Immigrant advocates argue many of the individuals removed are not a threat to public safety or repeat immigration violators. A significant flaw with the program is that an individual is flagged upon arrest, regardless of whether he or she has prior criminal history, before any determination of his or her guilt. As such, individuals who do not meet the enforcement goals behind Secure Communities can be subjected to removal/ deportation from the United States.

In addition, Secure Communities has the potential to “fracture immigrant community relations with police departments.” Undocumented immigrants' “fear of deportation keeps some crime victims and witnesses away from police, allowing criminals to prey on them.” Though police insist that crime victims and witnesses would not face inquiries regarding immigration status, fears will likely be exacerbated if the police are perceived as immigration enforcers.

ICE argues that Secure Communities is “an efficient and fair way to identify and prioritize cases that warrant deportation, replacing a haphazard approach where police would choose which cases were brought to the attention of federal authorities.” Secure Communities has “yielded more than 1 million matches that resulted in more than 212,000 deportations since it was launched in October 2008.” Not every immigrant located through Secure Communities is deported from the United States. According to ICE, the overwhelming majority of those detained through Secure Communities “had committed felonies or misdemeanors”, while others “had defied immigration court orders or returned illegally after deportation.” ICE contends only a small percentage of those detained and/or deported under Secure Communities solely for lacking valid immigration status.

Regardless of whether you agree with the Secure Communities program, its implementation has nonetheless had a significant impact on undocumented immigrants residing in the State of New York particularly in Nassau and Suffolk counties. The program went into effect in several counties throughout the State of New York on January 11, 2011. The Secure Communities program was expanded this year to include all counties within the State of New York including the City of New York. After eighteen (18) months of implementation, the use of the Secure Communities “program has led to 1,254 deportations.” Though encompassing only two (2) of the thirty-one (31) counties to initially participate in the Secure Communities, “Long Island accounted for nearly 44 percent of all immigrants removed from the state since Nassau and Suffolk started participation in February 2011.”

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

U.S.-Born Kids Of Deported Parents Struggle As Family Life Is 'Destroyed'

I stumbled upon an article with this very name by Helen O'Neill, a New York based national writer for The Associated Press. The article was published in Huff Post's “Latinovoices” section and can be found using the following link: http://www.huffingtonpost.com/2012/08/25/us-born-kids-deported-parents_n_1830496.html

Whether one agrees or disagreed with the author's angle of view, the problem of children of illegal immigrants is a pressing and heartbreaking one. Like many other Immigration-law related issues, the problem of broken illegal immigrant families with US-born children does not have a simple solution. In fact, it is always a tragedy, when children have to be separated from their parents, especially so when they end up in foster care. The ill effects of such stress on the young and vulnerable are hard to underestimate. Because most people feel compassion and heartache when confronted with stories of babies torn from the hands of their crying mothers, the issue is very appealing and is, indeed, in sore need of immediate resolution.

However, it is important to remember that, in many cases, the very reason for the problem does not lie in the US Immigration Law. Instead, it is caused by the irresponsible actions of illegal immigrant parents and their indifferent attitude toward the legalization of their status in the USA. All of these parents have either arrived in the country illegally, or remained in the country illegally. Most of them had been driven by economic reasons and a desire for better life, both of which are very understandable. Many of these individuals had been ordered deported or removed from the USA years ago, yet did nothing about it. Some may have had legal avenues to remain in the country, but never pursued them. What was their hope? Was it that they plainly be forgiven and granted legal residency for having born US-citizen children? Did they give any thought whether that would help their noncitizen children they had brought here illegally? After all, such a precedent had already been created during President Reagan's administration. One can only wonder how well that had gone and whether that program indeed created the incentive for people to keep breaking US immigration laws in a hope that they would be eventually legalized. Indeed, had the US laws been changed again in this manner, an even larger “Pandora 's Box” would have been opened. An atmosphere of impunity, permissiveness and total disregard for the laws would again be encouraged.

It is important to remember, that, in most cases, it was by ignoring the US immigration laws that the parents landed themselves and their children in trouble. Under most other circumstances, people would hardly argue that a person, convicted of breaking law, should not face punishment. In many criminal cases, such punishment is often associated with separation of the convicted from his or her family and especially, children as well as society at large. Breaking the law should lead to penalty. Should it not?

For many reasons, life in the US is more attractive for those who decide to come and stay here illegally than life in their respective homelands. It is understandable why many illegal immigrants would want to raise their kids in the US and not in their countries. However, should that mean that anyone can come and stay here illegally, ignoring and breaking the rules, laws and procedures others have to obey? Or, should everyone be required to follow the law?

The only way to make people respect the law of the land is to enforce it. All countries do it, and many deport illegal immigrants and break up families, with utter lack of humanity and total disregard for human rights. See, for example, http://enews.fergananews.com/article.php?id=1658. I think the United States can barely be accused of not providing proper safeguards to the rights of noncitizen. Immigration courts are working hard to ensure that people are not deported from this country without having been afforded an opportunity to present their claim for a relief from deportation, if they have any. The problem of illegal immigration is global. Everywhere there is a better economic opportunity, an influx of illegal immigrants ensues and creates this problem, regardless of the country's efforts to avoid it.

On the other hand, it is also true that children should not be responsible for their parents' actions. A child brought to this country by his or her parent at a young age, as a general rule, had no say in the matter and should not be kept responsible for the actions of the parents. Yet, unde the current law such child continues to suffer from the consequences of the parents' actions for the rest of his or her life in the USA. Having been brought up in this country, they cannot get employment authorization; apply for federal loans and do many other good things Americans take for granted. When they become adults, they often discover that in addition to dealing with normal life difficulties that most young adults have to face, they have to deal with the harsh reality of illegal life, which they had not bargained for. Many of these young adults have no connection to their countries of origin and very little knowledge of their respective cultures and people. Most of them identify themselves as Americans and know no other country. Deporting these people from the United States, though legally permissible, seems to be morally wrong and tantamount to holding children responsible for the illegal actions of their parents.

So, the hardest task is to reconcile these two fundamentally irreconcilable truths and find fair, reasonable, humane and acceptable ways of dealing with the problems of the children of illegal immigrants. There will never be any universal solution, except for one: illegal immigrants should take responsibility for their own lives and most importantly, those of their children they brought here illegally. Such parents should make every legitimate effort early on to obtain legal status in the USA, making such task into their number one priority. In many instances, timely and promptly sought professional legal help will eliminate the danger of heartbreak and family separation in the future.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com